Legal Background

During the trial, Ms L testified on her care of Jane, and her detailed notes were introduced into evidence, including her notes about the 2 neurologic examinations she performed. Drs S and G both testified as well, stating that they had each conducted a neurologic examination of the child but had not noted it in her file.

Two pediatricians testified. One noted that the standard of care required the physicians to perform a neurologic examination on Jane, and the expert would have preferred that the examination be documented in the patient’s record. However, the expert said that since the physicians had testified that they performed the examination, they did not breach the standard of care. The second pediatrician testified that pediatric patients with brain tumors typically present with nonspecific symptoms and there had been no indication that a radiologic study was necessary in this case. The pediatric neurosurgeon testified that he could not say whether Jane would have suffered less neurologic damage if he had performed the surgery 2 days earlier because there was no information establishing when the pressure in her brain increased.

At the end of the testimony, the defense made a motion to dismiss the case, saying that the plaintiff had not established that there was any deviation from the appropriate standard of care. The judge agreed and the case was dismissed. The plaintiff immediately appealed, arguing that since the physicians had not documented the neurologic examination, there was a question of fact as to whether it had taken place or not, and this question of fact should go to a jury.

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The appeals court disagreed, and specifically noted that Ms L’s testimony and documentation of the 2 normal neurologic examinations established that Jane’s neurologic function was normal at the time of her first 2 days in the emergency department. “During the child’s first and second encounters with the nurse in the emergency room there was no objective indication she suffered from any neurological abnormality,” noted the court in its decision. “The nurse’s careful documentation of her own assessments and neurological checks proved the hospital was not negligent for not finding her brain tumor sooner.” The case was dismissed.

Protecting Yourself

In this case an expert testified that although the standard of care required a neurologic examination, it did not require documentation of the examination. However, it was precisely the nurse’s documentation that allowed the court to be able to dismiss the case. Without her documentation, the case would have had to go to trial for a jury to decide whether the physicians were believable when they said that they had performed the examination. In almost every situation, completing documentation is the best course of action. Ms L’s conscientious note-taking saved her employer and her coworkers from significant stress and costly legal fees.

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.